Detainees with disabilities: Quid of the non bis idem principle?

By Lauryane LeneveuSpending dozens of hours in a cell smaller than three square meters. Sharing this cramped space with other people or being completely isolated from human contact. Being locked in a stressful, heavily monitored and sometimes violent environment. Prison life, a difficult and often traumatic experience, is not easy for anyone; imagine what it is like for detainees with disabilities.[1]

Detainees with disabilities face unsuitable cells, inaccessible common areas, lack of reasonable accommodation for their specific needs, inadequate staff training, discrimination, isolation, lack of adequate and properly adapted health care, shortage of doctors and other healthcare staff…. This is just the tip of the iceberg, the list continues.

The lack of reasonable accommodation in detention facilities increases the risk of exposure to neglect, violence, abuse, and ill-treatment. Untrained staff can lead to excessive use of immobilisation, solitary confinement or to overmedication. The failure to provide suitable regimes for their specific needs increases the possibilities of detainees with disabilities to breach prison rules, leading them to disciplinary or administrative exclusions from facility programs,services and activities.

Prison life for disabled detainees could therefore be argued to be tantamount to a double punishment; being sentenced for breaking the law and for requiring too much attention whilst belonging to a minority in a carceral environment. Therefore is the criminal law mantra “non bis idem”, i.e. you must not be punished twice for the same act, breached?

Upholding human rights of detainees with disabilities

Prison being restrictive by its nature adversely impacts detainees’ human rights; notably the right to liberty, the right to privacy and freedom of movement. Whilst prisoners no longer enjoy certain rights and freedoms, they must still be treated with humanity, dignity and respect whilst in detention. International human rights norms set out in detail the rights of individuals in detention and how to respect and protect them. These standards are supplemented by a number of principles and guidelines, as well as the views and decisions of various international human rights bodies.

In Europe,whilst there is no specific legal framework governing the situation of detainees with disabilities, many cases introduced before the European Court of Human Rights (ECtHR) assess that unsuitable conditions of detention of persons with disabilities violates Article 3 of the European Convention on Human Rights:the prohibition of torture, and inhuman or degrading treatment or punishment.

The ECtHR stresses, in particular, that the duty of care related to detainees with disabilities places special obligations on States to ensure that the detainee is able to serve their sentence, to provide them with the necessary medical care and to adapt, where appropriate, the general conditions of detention to the particular situation of their state of health. This includes providing detainees with disabilities with appropriate medical care, and to sufficiently take into account their special needs.

Moreover, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment establishes a mechanism designed to monitor the treatment of persons deprived of their liberty. However, no provision deals specifically with detainees with disabilities.

Within the UN, Article 10 of the International Covenant on Civil and Political Rights (ICCPR) provides that any person deprived of his liberty shall be treated with humanity and dignity. Article 10 is complemented by Article 7 ICCPR which bans torture or other cruel, inhumane or degrading treatment by guaranteeing those deprived of their liberty with the same conditions as free persons.

Furthermore, the Convention on the Rights of Persons with Disabilities (CRPD), the first global treaty dedicated to the protection of people with disabilities (counting 176 States parties) requires States under Article 13 to promote appropriate training for individuals working in the field of administrative justice. Additionally, Article 25 CRPD requests States to provide persons with disabilities with the highest attainable standard of health without discrimination on the basis of their disability. Moreover,according to the CRPD Committee, State parties must ensure that detainees with disabilities can live independently and participate fully in all aspects of daily life in detention, including having access, on an equal basis with others, to all areas and services.

Finally, the Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules) which reiterates fundamental principles applicable to all persons placed in detention, requires prison administration to take into account the needs of every detainee, in particular, those belonging to categories that are most vulnerable in prison settings.

Nevertheless,
today, despite these legal instruments and mechanisms, the situation of
detainees with disabilities rarely receives special attention.

Addressing inadequate conditions of detention of detainees with disabilities

Penitentiary institutions should promote training mechanisms for justice and prison officials in accordance with the international standards paradigm, as well as equal participation in and access to services and jobs for detainees with disabilities. Such recommendations, if taken into account,might have a favourable impact toward the well-being and respect of the human rights of detainees with disabilities as it will reduce isolation,discrimination and favour equality among detainees.

Furthermore, to better protect the rights of detainees with disabilities, States and in particular corrections systems should take all necessary measures to identify the possible disabilities of every person entering the criminal justice system and provide for their needs. Stakeholders should also guarantee access to and continuity of care.

Overall, it is worth noting that deprivation of liberty does not mean deprivation of dignity,however, the incarceration environment tends to treat detainees with disabilities with indifference, denial, rejection and disgust. What dignity do they have when they are abused and invisible to their peers? Detainees with disabilities need support, not punishment.

[1] The term “disabilities” as used in this article encompasses all types of impairments (physical, mental, intellectual or sensory).

Lauryane studied her undergraduate degree in Law with European Law at the University of Orléans in France with a year abroad in De Montfort University in the UK. She then undertook a Master in International Human Rights Law at the Catholic University of Lille in France, and worked several months for the Council of Europe. Freedom of Expression, Children’s Rights and interdisciplinary studies of Human Rights are her areas of interest.